First Amendment to Lease by and among Fawn Industrial, LLC



 Exhibit 10.2 
  

					
	North Carolina	  	)	  	
		  	)	  	                        FIRST AMENDMENT TO
LEASE
	Forsyth County	  	)	  	

 THIS FIRST AMENDMENT TO LEASE (“First Amendment”), is
made and entered into this 15th day of March, 2007, by and
between FAWN INDUSTRIAL LLC, a Delaware limited liability company and 1881 INDUSTRIAL LLC, a Delaware limited liability company (successors in interest to 3929 Westpoint Industrial, LLC), hereinafter collectively referred to as
“Landlord” and TENGION, INC., a Delaware corporation, hereinafter referred to as “Tenant”. Tenant leases from Landlord approximately 25,600 square feet (the “Premises”) known as Suite G, located at 3929 Westpoint
Boulevard, Forsyth County, North Carolina. 
 W I T N E S S E T H: 
 WHEREAS, Landlord’s predecessor 3929 Westpoint Industrial, LLC and Tenant entered into a Lease dated on or about June 6, 2005 for
the Premises (the “Lease”); and 
 WHEREAS, Landlord’s predecessor 3929 Westpoint Industrial, LLC duly assigned
its interests in the Lease to Landlord; and 
 WHEREAS, Landlord and Tenant desire to amend the Lease to provide for, among
other things, the exercise by Tenant of its Right of First Refusal set forth in Section 30(a) of the Lease with respect to approximately 12,800 square feet of space in the Building known as Suite F on the terms and conditions set forth in this
First Amendment. 
 NOW THEREFORE, based on the mutual promises and covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is acknowledged, the parties hereto agree to amend the Lease as follows: 
  

	1.	Recitals. The foregoing recitals are true and incorporated in this First Amendment. 

  

	2	Definitions. Unless otherwise defined in this First Amendment, all capitalized terms used in this First Amendment shall have the respective meanings ascribed to
them in the Lease. 

  

	3.	Amendments. The Lease is hereby amended as follows: 

  

	3.1	Section 1i. Parking. Section 1i of the Lease is hereby amended in its entirety to read as follows: 

 “Fifty-three (53) spaces for Tenant’s use at or near the front entrance of the Premises. Tenant shall also be permitted to
designate parking spaces near the rear of the Building (the “Designated Rear Parking Area”) directly behind the Premises as shown on

  

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Exhibit A-1 to the Lease and in Tenant’s Plans as described in the Workletter attached as Addendum Number One to the Lease (the “Workletter”). Landlord shall have no obligation to
monitor or enforce Tenant’s parking rights herein.” 
  

	3.2	Section 1k. Notices. The Notices Address for Landlord and Tenant set forth in Section 1k of the Lease are hereby amended to be as follows:


  

			
	k. Notice Addresses.
		
	Landlord:	  	Notices only:
		  	 FAWN INDUSTRIAL, LLC
 1881
Industrial, LLC
 c/o Mill Management, Inc.
 The Mill – 10 Glenville Street
 Greenwich, CT 06830

		
	Landlord:	  	 Payments only:
  
 Fawn Industrial, LLC
 Post Office Box
1595
 New York, NY 10008-1595

		
	Tenant:	  	 TENGION, INC.
 3929
Westpoint Boulevard, Suite G
 Winston-Salem, NC 27103
 Attn: Senior Vice President, Science and Technology
 Facsimile #: 336-716-6905

		
	with a copy to:	  	
		
		  	 TENGION, INC.
 2900 Potshop
Lane, Suite 100
 East Norriton, PA 19403
 Attn: General Counsel
 Facsimile #: 610-275-3754

		
	and to:	  	
		
		  	 TENGION, INC.
 2900 Potshop
Lane, Suite 100
 East Norriton, PA 19403
 Attn: Senior Vice President, Technical Operations
 Facsimile #: 610-275-3754


  

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	3.3	Expansion Space. Effective as of February 2, 2007 (the “Expansion Space Commencement Date” or “ESCD”), and subject to the terms and
conditions of the Lease and this First Amendment, Tenant hereby leases from Landlord and Landlord hereby leases to Tenant additional space in the Building consisting of approximately 12,800 square feet of space, known as Suite F (the “Expansion
Space”) all of which is shown on Exhibit A attached hereto and incorporated herein by reference. After the addition of the Expansion Space Tenant’s new total rentable square footage in the Premises shall be approximately 38,400 rentable
square feet. Effective on and after the Expansion Space Commencement Date, the term Premises in the Lease shall include the Expansion Space and except as amended by this First Amendment, all terms and conditions of the Lease shall be applicable to
the Expansion Space as part of the Premises, including without limitation the Expiration Date. The addition of the Expansion Space pursuant to this First Amendment shall be deemed to be an exercise of Tenant’s Right of First Refusal as set
forth in Section 30a of the Lease. 

  

	3.4	 Base Rent. The minimum base rent for the Term for the Expansion Space is $201,253.31, payable in monthly installments on the first
(1st) day of each month, beginning March 1,
2007, in accordance with the terms of the Lease and with the following Base Rent Schedule: 


  

												
	 From
	  	 Through
	  	Rate psf	  	Monthly Amount	  	Total for Period
	 ESCD
	  	February 28, 2007	  	$	0.00	  	$	0.00	  	$	0.00
	 March 1, 2007
	  	February 29, 2008	  	$	3.25	  	$	3,466.66	  	$	41,600.00
	 March 1, 2008
	  	February 28, 2009	  	$	3.35	  	$	3,573.33	  	$	42,880.00
	 March 1, 2009
	  	February 28, 2010	  	$	3.45	  	$	3,680.00	  	$	44,160.00
	 March 1, 2010
	  	February 28, 2011	  	$	3.55	  	$	3,786.66	  	$	45,440.00
	 March 1, 2011
	  	September 30, 2011	  	$	3.65	  	$	3,893.33	  	$	27,253.31

 Notwithstanding the fact that there are separate Base Rent schedules for the original
Premises and the Expansion Space, the Base Rent due for the Premises as a whole shall be deemed to be a single cumulative amount which is the total of the Base Rent due for the original Premises set forth in Section 1(e) of the Lease and the
Base Rent due for the Expansion Space as set forth in the above Base Rent Schedule. 
  

	3.5	 Operating Expenses. Based on the square footage of the Expansion Space Tenant shall pay to Landlord its proportionate share of Landlord’s
common area maintenance expenses (as defined below) for the Building and the Common Areas. Tenant’s proportionate share shall be the relation of Tenant’s 12,800 square foot Expansion Space to the 89,600 square footage of the Building area,
or 14.29%. Common Area Expenses shall include, but are not limited to the following incurred by Landlord with respect to the Building and Common Areas: repairs and maintenance; snow and ice removal; window washing; painting; security



  

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services; any alteration or other work required by any governmental authority not attributable primarily to the particular use made by a particular tenant to include costs expended by Landlord in
order to place and keep the Building and Common Areas in compliance with the Americans with Disabilities Act (ADA) and any other legislation by any governmental body first taking effect after the ESCD, casualty, boiler and machinery, loss of rents
and general and excess liability insurance and any insurance required to be maintained by Landlord under this Lease; cleaning, striping, sealing and repairs to parking areas, driveways, sidewalks and loading areas; lawn care and landscaping
maintenance; market rate management and administrative fees; all taxes, assessments and governmental charges of any kind and nature whatsoever lawfully levied or assessed against the Building and the Common Areas; and all other expenses paid in
connection with the operation of the Building and Common Areas chargeable against income. Landlord, upon written demand by Tenant therefor, but not sooner than ninety (90) days after the expiration of a lease year shall furnish Tenant a summary
schedule of Common Area Expenses for such lease year. In no event shall Common Area Expenses include (i) any expense which is capitalized pursuant to generally accepted accounting principles consistently applied (except as specifically provided
above and in that case the cost shall be amortized over the improvement’s useful life and only that portion of the expense which is amortized during the Term shall be included in Common Area Expenses on an annual basis); (ii) any cost
incurred to prepare space for any tenant’s occupancy; (iii) cost of repairs necessitated by Landlord’s gross negligence or willful misconduct; (iv) expenses for any item or service not provided to Tenant but exclusively to
certain other tenants at the Building; (v) salaries of employees above grade of building Manager and that portion of employee expenses for employees whose time is not spent directly and solely in operation of the Building (vi) any costs or
fees paid to affiliates of Landlord or other third parties in excess of those costs or fees that would be paid for the same products or services in the absence of a relationship with Landlord. 


 During the term hereof, Landlord shall notify Tenant of its proportionate share due for such Common Area Expenses. Landlord shall have the
option through the Lease term to require Tenant’s reimbursement on either a monthly, quarterly or annual basis, at Landlord’s sole discretion, to become due and payable as additional rent within ten (10) days, if invoiced monthly or
thirty days (30) days, if invoiced quarterly or annually, from the date of invoice. Provided Tenant is not then in monetary default under this Lease, Tenant and/or its qualified professional advisers shall have the right, upon prior written
notice to Landlord, and at its sole cost and expense, to inspect and/or audit Landlord’s books and records at Landlord’s office or at the office of Landlord’s managing agent within 180 days following receipt of a summary schedule of
Common Area Expenses. If after such inspection and/or audit Tenant disputes the amount of operating expenses, a certification as to the proper amount shall be made by Landlord’s independent certified public accountant in consultation with
Tenant’s professional, which certification shall be final and conclusive. If such audit reveals that operating expenses were overstated in the calendar year audited Landlord shall within thirty (30) days after the certification pay to
Tenant the amount of any overstatement which it had collected from Tenant. If the

  

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operating expense certification shows that the operating expenses were overstated by more than 7% in the calendar year audited, then Landlord shall pay the reasonable costs of Tenant’s
audit, but not including however any travel charges related to such audit. However, if such certification does not show that Landlord had made such an overstatement then Tenant shall pay both the costs of its professional as well as the reasonable
charges of Landlord’s independent certified public accountant (but not including however any of its travel charges) engaged to determine the correct amount of operating expenses. If the certification shows that Landlord has undercharged Tenant
then Tenant shall within thirty (30) days pay to Landlord the amount of any undercharge. 
 Books and records necessary to
accomplish any audit permitted under this Section shall be retained for twelve months after the end of each calendar year, and on receipt of notice of Tenant’s intent to inspect and/or audit the operating expenses shall be made available to
Tenant to conduct the inspection and/or audit at the location set forth above. 
 In the event that the Tenant elects to have a
professional audit Landlord’s operating expenses as provided in this Lease, such audit must be conducted by an independent nationally or regionally recognized accounting firm that is not being compensated by Tenant on a contingency fee basis.
All information obtained through such audit as well as any compromise, settlement or adjustment reached as a result of such audit shall be held in strict confidence by Tenant and its officers, agents, and employees and as a condition to such audit,
the Tenant’s auditor shall execute a written agreement agreeing that the auditor is not being compensated on a contingency fee basis and that all information obtained through such audit as well as any compromise, settlement or adjustment
reached as a result of such audit, shall be held in strict confidence and shall not be revealed in any manner to any person other than to Tenant and Tenant’s professional advisers except upon the prior written consent of the Landlord, which
consent shall not be unreasonably withheld, or if required pursuant to any litigation between Landlord and Tenant. 
 No
subtenant shall have any right to conduct an audit. 
  

	3.6	“AS IS” Condition. Except with respect to any latent defects in the Expansion Space, Tenant is leasing the Expansion Space in “as is”
condition and Landlord has no Tenant Improvement responsibilities or obligations with respect to the Expansion Space, except with respect to Landlord’s maintenance, repair and restoration obligations set forth in the Lease. Lease Addendum
Number One [Tenant to Do Work] attached to the Lease shall not apply to the Expansion Space, Landlord shall have no obligation to make any alterations to the Premises or the Building under Section 4.e of the Lease, and any alterations to the
Expansion Space shall be governed by and performed in accordance with Section 8.d of the Lease. 

  

	4.	Amendment to Lease. The foregoing amends the Lease. Unless otherwise defined herein, all capitalized terms used in this First Amendment shall have the same
definitions ascribed in the Lease. Except as specifically modified and amended by this First Amendment, all other terms and conditions of the Lease shall remain in full force and effect. 

 THE NEXT PAGE IS THE SIGNATUARE PAGE. 
  

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 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Lease or have
caused their duly authorized representatives to execute same in four (4) original counterparts, as of the day and year first above written. 
  

									
		 		 	LANDLORD:
		 		 	FAWN INDUSTRIAL, LLC, a Delaware
		 		 	limited liability company
	Witness:	 		 	
				
	 	 		 	By:	 	/s/ Steven J. Schacter
		 		 		 	Name:	 	Steven J. Schacter
		 		 		 	Title:	 	Manager
	 	 		 	Dated:	 	3/19/07
	Print Name 	 		 		 	
			
		 		 	LANDLORD:
		 		 	1881 INDUSTRIAL, LLC, a Delaware
		 		 	limited liability company
	Witness:	 		 	
				
	 	 		 	By:	 	/s/ Steven J. Schacter
		 		 		 	Name:	 	Steven J. Schacter
		 		 		 	Title:	 	Manager
	 	 		 	Dated:	 	3/19/07
	Print Name 	 		 		 	
			
		 		 	TENANT:
		 		 	TENGION, INC., a Delaware corporation
	Witness:	 		 	
				
	 	 		 	By:	 	/s/ Gary Sender
		 		 		 	Name:	 	Gary Sender
		 		 		 	Title:	 	CFO
	 	 		 	Dated:	 	3/    /07
	Print Name 	 		 		 	

  

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